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1966 Supreme(Cal) 198
HIGH COURT OF CALCUTTA
R. N. Dutt
MANINDRA NATH MUKHERJEE - Appellant
Versus
NITAI CHANDRA HAZRA - Respondent
. Of .
Decided On : September 28, 1966
HARINARAYAN MUKHERJEE, LALA HEMANTA KUMAR, MURARI MOHON DAS, RANJIT KUMAR BANERJEE, Sudhir Kumar Dutta
The interest of a non-agricultural tenant does not vest in the State of West Bengal under the Estates Acquisition Act, 1953.
Headnote:
THIKA TENANCY ACT - NON-AGRICULTURAL TENANT - LEASE OF JALKAR RIGHT - VESTING OF INTEREST IN STATE - ESTATES ACQUISITION ACT, 1953, SECTIONS 2(I), 2(K), 5, 6(2), 52 - TRANSFER OF PROPERTY ACT, 1882, SECTION 106.
Fact of the Case:
Plaintiff filed a suit for ejectment of the defendant from the disputed tank and its banks. The defendant was a lessee in respect of the jalkar of the disputed tank. The plaintiff determined this lease by service of notice to quit under Section 106 of the Transfer of Property Act but the defendant failed to vacate and hence the suit.
Finding of the Court:
The court found that the plaintiff was the owner of the tank and its banks and the defendant was a lessee in respect of the jalkar right in the tank and that his lease was determined by service of notice to quit. The court also found that the interest of the plaintiff had not vested in the State of West Bengal under the Estates Acquisition Act, 1953.
Issues: 1. Whether the defendant was a thika tenant under the plaintiff governed by the Calcutta Thika Tenancy Act? 2. Whether the interest of the plaintiff had vested in the State of West Bengal under the Estates Acquisition Act, 1953?
Ratio Decidendi: 1. The defendant was not a thika tenant under the plaintiff governed by the Calcutta Thika Tenancy Act because he was not a lessee of the bed or the banks of the tank, but only of the jalkar right. 2. The interest of the plaintiff had not vested in the State of West Bengal under the Estates Acquisition Act, 1953 because the plaintiff was a non-agricultural tenant and the interest of non-agricultural tenants was not to vest in the State.
Final Decision: The appeal was dismissed and the plaintiff was entitled to recover khas possession of the tank.
( 2 ) THE plaintiff alleged as follows : one Harendra and one Nagendrabala were non-agricultural tenants under a niskar touzi-holder in respect of holding No. 8 Mallickpara Lane, Howrah within the municipal town of Howrah. Nagendrabala died leaving two daughters Saibalini and Mira who in their turn surrendered their interest in the holding to Nagendrabala's reversioner Nripen. Thereafter there was a partition between Harendra and Nripen and the disputed property comprising a tank and its banks came to the share of Nripen. The plaintiff subsequently acquired the interest of Nripen. The defendant was a lessee in respect of the jalkar of the disputed tank. The plaintiff determined this lease by service of notice to quit under Section 106 of the Transfer of Property Act but the defendant failed to vacate and hence the suit. The defence was that one Benimadhab was a tenant of the tank and its banks under Harendra and Nagendrabala. One Kalicharan was the heir of Benimadhab. The defendant had taken lease of the tank from Kalicharan and was in possession of the same. Kalicharan surrendered his tenancy of the tank and its banks in favour of Harendra and Nagendrabala but they treated the defendant as a tenant of the tank and its banks and accepted rent as such. The service of notice was not disputed but it was said that the notice did not determine the defendant's tenancy.
( 3 ) THE learned Munsif found that the plaintiff was the owner of the tank and its banks but the defendant was a thika tenant under the plaintiff governed by the Calcutta Thika Tenancy Act and so the defendant was not liable to be evicted and the suit was dismissed. The learned Subordinate Judge has found that the defendant was not in any case governed by the Calcutta Thika Tenancy Act. He also found that the defendant was a lessee in respect of the jalkar right in the tank and that his lease was determined by service of notice to quit. Before the learned Subordinate Judge one more point was mooted, viz. , whether the interest of the plaintiff had vested in the State of West Bengal under the Estates Acquisition Act, 1953. The learned Subordinate Judge found that the interest of the plaintiff had not vested in the State. He, accordingly, decreed the suit.
( 4 ) THE disputed tank is within the Howrah Municipality but it appertains to a niskar touzi. Harendra and Nagendrabala were non-agricultural tenants under the niskar touzi. Both the Courts have now found that the plaintiff is a non-agricultural tenant under the niskar touzi holder in respect of some non-agricultural lands which include this tank also. Mr. Lala first submits that the learned Subordinate Judge misinterpreted the decision in Kinuram Sadhukhan and another v. Hazi Md. Yusuf and another, reported in 63 CWN 939. The reference to the said decision made by the learned Subordinate Judge is certainly not appropriate. But the decision in that case will not be of much relevance here. It was said in that case that if the head lessee is a raiyat the under-lessee will be an under-raiyat under the Bengal Tenancy Act, no matter whether the under-raiyat holds the land for agricultural or for non agricultural purpose. Mr. Lala submits that even though the defendant might hold that tank for non-agricultural purpose he would be an under-raiyat under the plaintiff. This argument cannot be accepted, because the defendant is not in this case a lessee of the bed or the banks of the tank. The learned Subordinate Judge has found that the defendant took lease of the tank for rearing and catching fish and his interest was that of a lessee of the lajkar right of the tank. Since there was no lease of the land the decision
